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LAC Guidelines: 2014 edition

Introduction

These Guidelines have been produced by the LAC (remodelled in 2015 into the Legislation Design and Advisory Committee) for government officials who are developing legislation. These Guidelines should enable officials to identify and address many of the issues that arise during the legislative development process.

These Guidelines are not intended to act as a hurdle for officials to overcome; nor are they concerned with second guessing policy decisions by Ministers. Rather, these Guidelines represent “best practice” in relation to the development of legislation.

Many of these Guidelines can be departed from in certain circumstances, and strict compliance may not always be possible. Where a departure from these Guidelines does occur, officials should be prepared to demonstrate (often to a Select Committee) that they have fully considered the issues, and are able to provide good justification for the departure.

What is the purpose of legislation ?

Legislation can be used to create and recognise rights or impose obligations and penalties. It is used to create institutions and provides the means for the Government to raise money and spend public funds. Legislation is used to give effect to NewZealand’s international obligations and, above all, to regulate public and private behaviour and enable the Government to act in a way that is in the best interests of NewZealand’s citizens.

Legislation is one of the most powerful tools available to the Government and should only be considered when there is a proper need. Legislation or provisions in legislation that have no legal effect and that are not intended to be enforced are a waste of Parliament’s time, a needless expenditure of public funds, and bring the law into disrepute.

What is high quality legislation?

Legislation must be easy to use, understandable, and accessible to those who are required to use it. Quality legislation will achieve its underlying policy objective, but still have proper respect for important legal principles (including human rights) and smoothly integrate with the existing body of law.

Why is careful legislative design important?

A thorough legislative design process will help ensure that work on a Bill is not abandoned part way through its development because issues that should have been considered at the outset have subsequently come to light. It will result in less issues being raised at the select committee phase and the production of fewer Supplementary Order Papers. It will also reduce the risk that a Bill may be enacted, but contain a defect or fail to achieve the intended purpose—all of which will require further legislation to address and may result in delayed implementation and increased cost.

If one adds up the time of policy officials, departmental lawyers, Parliamentary counsel, Parliament, and departments all involved in the task of developing and preparing to implement new legislation, the financial cost of even a modest Bill can easily run to millions of dollars. Each unnecessary or poorly presented Bill also represents a lost opportunity for departments to spend time on other projects and for Parliament to consider other matters. There are costs to the community; for example, those who take the time and expense to make submissions on Bills, or those who must prepare for a Bill that is coming into force.

Departmental best practice

Departments and agencies will deploy their resources in the manner that is most effective for the needs of the department. However, policy advisers and legal advisers should work together closely from the outset of the legislation development process. Both have important skills and insights that must be brought to bear on the design of legislation.